Joshua A. Perkins vs. State of Missouri
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In the Missouri Court of Appeals Western District JOSHUA A. PERKINS, Appellant, v. STATE OF MISSOURI, Respondent. ) ) ) ) ) ) ) ) ) WD80745 OPINION FILED: August 7, 2018 Appeal from the Circuit Court of Cole County, Missouri The Honorable Daniel R. Green, Judge Before Division Four: Karen King Mitchell, Chief Judge, Presiding, Cynthia L. Martin, Judge and Janette K. Rodecap, Special Judge Joshua Perkins ("Perkins") appeals the denial of his Rule 24.035 motion following an evidentiary hearing. Perkins argues that the motion court clearly erred in failing to conduct an abandonment hearing and in denying his claim that his guilty plea was involuntary. We affirm. Factual and Procedural Background The State charged Perkins with the class A felony of assault of a corrections officer in the first degree (Count I) and the class B felony of committing violence against an employee of the Department of Corrections (Count II). Perkins appeared with counsel at a plea and sentencing hearing on May 5, 2016. At the hearing, the State initially announced the agreed upon sentence to be concurrent 20-year terms of imprisonment on each count, to run consecutively with any sentence Perkins was currently serving. Perkins stated that he understood the State sought a 20-year term on Count I. Later in the hearing, the State offered to drop Count II if Perkins pleaded guilty to Count I for a 20-year term of imprisonment consecutive with the time he was currently serving. Perkins agreed. The plea court reiterated the State's offer of a 20-year sentence on Count I, explaining to Perkins he had the right to decline the offer and go to trial. Perkins responded that he did not want to go to trial. The plea court found Perkins's guilty plea was freely and voluntarily entered with an understanding of the nature of the charge and the range of punishment. The plea court also explained to Perkins that there would not be a sentencing assessment report "because we've already agreed with what the sentence is going to be." The plea court sentenced Perkins to a 20-year term of imprisonment on Count I, to run consecutively with any existing sentence. The plea court did not advise Perkins of the mandatory minimum and maximum penalties for Count I. Perkins did not appeal the judgment of conviction and sentence. Perkins filed a timely pro se motion for post-conviction relief on June 22, 2016. When prompted to list all known claims for vacating, setting aside, or correcting his conviction and sentence, Perkins identified no known claims, and instead wrote "To be amended by appointed counsel." The motion court appointed the public defender as counsel for Perkins. The transcript of Perkins's guilty plea and sentencing was filed on 2 July 29, 2016. By operation of Rule 24.035(g),1 any amended motion was due by September 27, 2016. On September 27, 2016, appointed counsel filed a statement in lieu of an amended motion pursuant to Rule 24.035(e). Counsel attested that he had reviewed plea counsel's files, the transcript from Perkins's guilty plea and sentencing, Perkins's pro se motion, and correspondence from Perkins. Based on this review, appointed counsel determined that there were no claims to be raised in an amended motion. Counsel also stated that he provided a copy of the statement to Perkins prior to filing. On October 3, 2016, within ten days of appointed counsel's filing of the statement in lieu of an amended motion, Perkins filed a motion requesting an extension of time to file an amended motion, and also filed a pro se amended motion. Perkins's amended motion asserted several claims for post-conviction relief from his underlying guilty plea, but did not claim abandonment by appointed counsel or otherwise address appointed counsel's statement in lieu of an amended motion. Relevant to this appeal, Perkins's pro se amended motion alleged that the plea court failed to advise him of the minimum and maximum sentences he could receive, and that he would have more than likely gone to trial had he known the range of punishment. On October 13, 2016, the motion court granted Perkins's motion for an extension of time to file an amended motion. Following an evidentiary hearing, the motion court issued findings of fact and conclusions of law on Perkins's pro se amended motion. The motion 1 All references to rules are to Missouri Court Rules, Volume I -- State, 2016 unless otherwise indicated. 3 court's judgment held that Perkins's amended motion "was filed within the time constraints of his Motion for Extension of Time." On Perkins's claim that his plea was involuntary because the plea court failed to inform him of the range of punishment, the motion court found that Perkins received the agreed upon sentence established by his plea agreement with the State. The motion court also found that Perkins understood the punishment he would receive per the plea agreement, and that he repeatedly stated he did not want to go to trial. Accordingly, the motion court held that Perkins was not prejudiced by the plea court's failure to inform him of the range of punishment. The motion court denied all other claims in Perkins's pro se amended motion, none of which are the subject of this appeal. This timely appeal followed. Standard of Review "[R]eview of a denial of a post-conviction motion under Rule 24.035 is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous." Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009). "The motion court's findings and conclusions are clearly erroneous only if, after review of the record, the appellate court is left with the definite and firm impression that a mistake has been made." Id. "We presume that the motion court's findings and conclusions are correct, and defer to the motion court's determinations of credibility." Simmons v. State, 502 S.W.3d 739, 741 (Mo. App. W.D. 2016) (quoting Porter v. State, 480 S.W.3d 455, 457 (Mo. App. W.D. 2016)). "Even if the stated reason for a [motion] court's ruling is incorrect, the judgment should be affirmed if the judgment is sustainable on other grounds." Swallow v. State, 398 S.W.3d 1, 3 (Mo. banc 2013). 4 Analysis Perkins asserts two points on appeal. In Point One, Perkins argues that the motion court clearly erred in failing to conduct an abandonment hearing following appointed counsel's filing of a statement in lieu of an amended motion. In Point Two, Perkins maintains that the motion court clearly erred in denying his claim that his plea was involuntary because the plea court failed to inform him of the range of punishment. Point One In his first point on appeal, Perkins contends that the record does not demonstrate that appointed counsel satisfied the requirements of Rule 24.035(e), requiring the motion court to conduct an abandonment analysis. Perkins claims that appointed counsel failed to fulfill his obligations under Rule 24.035(e) because counsel did not personally ask or discuss with Perkins whether the pro se motion alleged all claims known to him. Pursuant to Rule 24.035(e), when counsel is appointed to represent a postconviction movant, counsel "shall ascertain whether sufficient facts supporting the claims are asserted in the [pro se] motion and whether the movant has included all claims known to the movant as a basis for attacking the judgment and sentence." Following this investigation, "appointed counsel must file either an amended motion to compensate for any deficiencies in the pro se motion or, in the alternative, a statement explaining the actions counsel took to ensure that no amended motion is needed." Vogl v. State, 437 S.W.3d 218, 226 (Mo. banc 2014). "If counsel determines that no amended motion shall be filed, counsel shall file a statement setting out facts demonstrating what actions were taken to ensure that (1) all facts supporting the claims are asserted in the pro se motion and 5 (2) all claims known to the movant are alleged in the pro se motion." Rule 24.035(e). In addition, "[t]he statement shall be presented to the movant prior to filing." Rule 24.035(e). "If post-conviction counsel fails to comply with the provisions of the Rule, it raises a presumption that he has abandoned the movant." Scott v. State, 472 S.W.3d 593, 596 (Mo. App. W.D. 2015). "[W]hen the record raises a presumption of abandonment because appointed counsel has failed to comply with the requirements in Rule 24.035(e) . . . a motion court must conduct a sufficient independent inquiry of a post-conviction movant's claim of abandonment." Vogl, 437 S.W.3d at 229. But when the record refutes a claim of abandonment, "no independent inquiry is required of the motion court." Id. A claim of abandonment is refuted by the record, such that no inquiry is required, when appointed counsel complies with Rule 24.035(e) by "filing either an amended motion or a statement setting out facts that demonstrate the actions that were taken to ensure that an amended motion is not needed." Id. at 228. "A decision by [post-conviction] counsel to file a statement in lieu of an amended motion, as permitted by Rule 24.035(e), does not, in itself, constitute abandonment." Scott, 472 S.W.3d at 597. Here, appointed counsel filed a statement in lieu of an amended motion in the manner required by Rule 24.035(e). Appointed counsel's statement in lieu advised that appointed counsel had ascertained "that there are no claims to be raised in an amended motion, and there are no additional facts to be included in support [of] what [Perkins] has stated in his pro se motion to vacate, set aside, or correct judgment or sentence." In support of these assertions, appointed counsel noted that he had reviewed (i) plea counsel's files, (ii) the transcript of Perkins's plea and sentencing hearing, (iii) Perkins's pro se motion, and 6 (iv) correspondence from Perkins. The statement in lieu also asserted that that a copy of the statement had been provided to Perkins prior to its filing. The statement in lieu facially complied with the requirements of Rule 24.035(e). The record thus refutes a claim of abandonment.2 Vogl, 437 S.W.3d at 228-29. Perkins nonetheless complains that the trial court had a sua sponte obligation to investigate whether Perkins was abandoned because appointed counsel did not have any personal conversations or discussions with Perkins before deciding to file a statement in lieu of an amended motion. However, although Rule 24.035(e) requires appointed counsel to ascertain whether a pro se motion includes all claims known to a movant, and to set forth the steps taken to do so, it does not instruct the steps that must be taken by appointed counsel to do so. Relevant here, Rule 24.035(e) does not require appointed counsel to set out facts demonstrating that he or she spoke directly with a post-conviction movant in order to ascertain whether the pro se motion asserts all facts and/or claims known to a movant. Perkins's contention that counsel should have personally talked with him about whether the 2 During oral argument, Perkins's counsel referred this court to two cases: Brown v. State, 968 S.W.3d 725 (Mo. App. E.D. 1998) and Moore v. State, 934 S.W.2d 289 (Mo. banc 1996). Perkins argued both cases require an abandonment hearing when appointed counsel's statement in lieu of an amended motion fails to confirm conversations have taken place with the movant prior to the filing of the statement. We disagree. In Moore, the statement in lieu was found to be tantamount to a confession of abandonment, as appointed counsel's statement indicated that appointed counsel "reviewed the file 'with the exclusion of the transcripts of the guilty plea hearing, the sentencing hearing . . . , and movant's pro se motion. . . .'" Moore, 934 S.W.2d at 292. The Court in Moore deemed this to be facial noncompliance with the requirements of Rule 24.035(e), requiring an abandonment inquiry. Id. (noting that "the statement filed by post-conviction counsel shows on its face that counsel took neither of the two actions required by Rule 24.035(e) (emphasis in original)). In contrast, the statement filed by Perkins's appointed counsel facially complied with the requirements of Rule 24.035(e). In Brown v. State, the State conceded that a statement in lieu failed to facially comply with the requirements of Rule 24.035(e) when the statement failed to include an assurance that a copy of the statement had been provided to the movant before it was filed. 968 S.W.3d at 727. Although the court in Brown also referred to the statement's failure to explain counsel's reasons for failing to communicate with the movant prior to filing the statement, the State's concession that the statement in lieu failed to facially comply with Rule 24.035(e)'s requirements negated the need for the court to engage in any analysis regarding whether such an explanation is facially required by the Rule. In addition, in this case appointed counsel's statement does state that he communicated with Perkins, albeit in writing, as part of his investigation. 7 pro se motion included all known claims is "a substitute for an impermissible claim of ineffective assistance of post-conviction counsel." Barton v. State, 486 S.W.3d 332, 338 (Mo. banc 2016); see also Riley v. State, 364 S.W.3d 631, 637 (Mo. App. W.D. 2012) ("Under Rule 29.15(e) . . . counsel is entitled to exercise his or her reasonable professional judgment to determine what level of inquiry is necessary to ensure that all viable postconviction claims . . . are properly presented.").3 "[R]eview of whether [post- conviction counsel] should have filed an amended motion with supplemental claims [instead of a statement pursuant to Rule 24.035(e)] is beyond the scope of the analysis on the issue of abandonment and constitutes an unreviewable post-conviction ineffective assistance of counsel claim." Logan v. State, 377 S.W.3d 623, 627 (Mo. App. W.D. 2012) (alterations in original) (quoting Dean v. State, 314 S.W.3d 402, 407 (Mo. App. S.D. 2010)). We recognize that Perkins's initial pro se motion asserted no claims at all, and instead indicated in the section where claims were to be asserted that the motion would "be amended by appointed counsel." That is immaterial, however, to whether appointed counsel facially complied with the requirements of Rule 24.035(e). Appointed counsel's statement in lieu of an amended motion set out facts demonstrating the actions taken in ascertaining that the pro se motion set forth all facts and claims known to the movant, and that there are no claims to be raised in an amended motion. The statement in lieu is not rendered deficient merely because Perkins's initial pro se motion asserted no claims. 3 Although Riley v. State, 364 S.W.3d 631 (Mo. App. W.D. 2012), addresses Rule 29.15(e), that rule is identical to Rule 24.035(e). "[C]ase law interpreting a provision that is identical in both [post-conviction] rules applies equally in proceedings under either rule." Vogl v. State, 437 S.W.3d 218, 224 n.7 (Mo. banc 2014). 8 It is worth noting that Rule 24.035(e) provides movants with recourse to challenge statements in lieu filed by appointed counsel. After discussing what a statement in lieu must address, the last sentence of Rule 24.035(e) provides that "[t]he movant may file a reply to the statement not later than ten days after the statement is filed." We have found no Missouri authority addressing what can, should, or must be included in the reply authorized by Rule 24.035(e). Nor have we located Missouri authority addressing the effect of a filed reply, or the procedure to be followed by a motion court if a reply is filed. However, it is reasonable to conclude that at a minimum, the reply authorized by Rule 24.035(e) constitutes the movant's opportunity to challenge the assertions made in a statement in lieu of an amended motion, and thus affords a movant the opportunity to put facts on the record that could require an independent inquiry. Perkins did not file a reply to appointed counsel's statement in lieu of an amended motion as authorized by Rule 24.035(e). And although Perkins's pro se amended motion was filed within ten days of appointed counsel's statement in lieu, the pro se amended motion does not argue that appointed counsel's statement in lieu was deficient, or that appointed counsel abandoned Perkins.4 Though Perkins's pro se amended motion asserted claims to vacate and set aside his judgment and sentence, the pro se amended motion did not argue, and Perkins has not argued on appeal, that the filing of a pro se amended motion within ten days of appointed 4 The Missouri Supreme Court is currently addressing whether a post-conviction movant is permitted to file a pro se amended motion after appointed counsel files a statement in lieu pursuant to Rule 24.035(e). See Latham v. State, No. SC96315 (Mo. banc argued Nov. 8, 2017). Though the prominent issue in that case is the timeliness of a pro se amended motion filed after appointed counsel files a statement in lieu, it is possible the Supreme Court could also address the extent to which a pro se amended motion filed within ten days of a statement in lieu constitutes the reply authorized by Rule 24.035(e). 9 counsel's filing of a statement in lieu of amended motion requires an abandonment inquiry. We will not sua sponte address arguments Perkins has not raised. The trial court did not commit clear error in failing to conduct an abandonment inquiry. Point One is denied. Point Two In Point Two, Perkins argues that the motion court clearly erred in denying the claim asserted in his pro se amended motion that his guilty plea was involuntary because the plea court failed to advise him of the mandatory minimum and maximum penalties for his charged offense. Before addressing the merit of Perkins's point on appeal, we address the State's contention that the motion court had no authority to entertain Perkins's pro se amended motion because it was not timely filed. The State maintains that counsel's filing of a statement in lieu of an amended motion does not grant a post-conviction movant an additional ten days within which to file a pro se amended motion. Additionally, the State argues that the motion court had no authority to grant Perkins an extension of time to file an amended motion when the motion requesting an extension of time was filed after the time to file an amended motion had lapsed. The State's contention frames an issue that may be resolved by the anticipated decision in Latham v. State, No. SC96315 (Mo. banc argued Nov. 8, 2017), where the Supreme Court is similarly considering the timeliness of a pro se amended motion filed after appointed counsel's statement in lieu of an amended motion. If Latham does not 10 resolve the timeliness issue presented by the facts in this case, Missouri authority on the subject is mixed. In 1990, the Missouri Supreme Court held that under then Rule 29.15(f), the discretion of the motion court to extend the time to file an amended motion must be exercised within the time the amended motion is initially due. Clemmons v. State, 785 S.W.2d 524, 527 (Mo. banc 1990).5 This holding from Clemmons has been cited by each of our appellate courts. See Rutherford v. State, 192 S.W.3d 746, 749 n.4 (Mo. App. S.D. 2006); State v. Leisure, 810 S.W.2d 560, 575 (Mo. App. E.D. 1991); Pelton v. State, 794 S.W.2d 301, 302 n.1 (Mo. App. W.D. 1990). Based on Clemmons, the motion court had no authority to grant Perkins's October 3, 2016 motion seeking an extension of time to file an amended motion because the initial time period to file an amended motion expired on September 27, 2016. More recently, however, the Eastern District cited the Southern District to authorize a motion court's grant of an extension to file an amended motion sought after the time to file an amended motion had expired, "as long as the amended motion was ultimately filed within the [authorized] extension period." Federhofer v. State, 462 S.W.3d 838, 841(Mo. App. E.D. 2015) (citing Volner v. State, 253 S.W.3d 590, 592 (Mo. App. S.D. 2008) (approving of request filed five days after initial time limit when request and amended motion were both filed "well within the thirty-day extension period")). Both cases involved amended motions filed by appointed counsel. It is possible that Federhofer and Volner 5 Clemmons v. State, 785 S.W.2d 524 (Mo. banc 1990), interpreted language in then Rule 29.15(f) that is identical to the language in Rule 29.15(g) allowing a motion court to extend the time for filing an amended motion, and Rule 29.15(g) is identical to Rule 24.035(g). See Vogl, 437 S.W.3d at 224 n.7. 11 aimed to shortcut what would otherwise have been the required remedy for an untimely amended motion where the delay is not attributable to the movant--treating the untimely motion as timely filed. See Williams v. State, 503 S.W.3d 301, 303 (Mo. App. W.D. 2016). However, the holdings in Federhofer and Volner are not expressly limited to amended motions filed by appointed counsel. And, neither Federhofer nor Volner address Clemmons. If we were similarly inclined to disregard Clemmons, Perkins's amended motion would be deemed timely because it was filed within the extension period authorized by Rule 24.035, though the request for an extension was not made before the amended motion was initially due. In the end, we need not resolve whether Perkins's pro se amended motion was timely filed as the claim therein asserted that is the subject of Perkins's second point on appeal is plainly without merit.6 Pursuant to Rule 24.02(b)(1), the plea court was required to inform Perkins of "the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law." While it is clear from the record that the plea court failed to inform Perkins of the mandatory minimum and maximum penalties he faced, "the failure to methodically trace in succession each of the items pronounced by the rule [24.02] does not necessarily constitute prejudicial error." Steinle v. State, 861 S.W.2d 141, 143 (Mo. App. W.D. 1993). "[T]he failure of the [plea] court to advise the defendant of the 6 If Perkins's pro se amended motion is considered untimely, the motion court would then have been required to adjudicate Perkins's initial pro se motion. Gittemeier v. State, 527 S.W.3d 64, 66 (Mo. banc 2017). In that instance, the motion court would have been required to dismiss Perkins's claim for post-conviction relief because Perkins' initial motion did not assert any claims for relief. The motion court did in fact dismiss Perkins's claims for post-conviction relief (albeit based on the amended motion), and did not err in doing so. See id. at 66-67 (affirming a motion court's judgment overruling post-conviction relief even though the motion court adjudicated claims raised in an untimely amended motion). 12 range of punishment prior to accepting his guilty plea [does] not prejudice the plea where the sentence imposed was agreed upon in advance." Id. (citing Matthews v. State, 501 S.W.2d 44, 46 (Mo. 1973)); accord Holland v. State, 990 S.W.2d 24, 29 (Mo. App. E.D. 1999). Perkins and the State agreed prior to sentencing that his sentence on Count I would be a 20-year term of imprisonment. Perkins clearly understood the terms of the plea agreement. He also expressed that he did not want to go to trial. The plea court imposed the exact sentence agreed upon between Perkins and the State. Perkins was not prejudiced by the plea court's failure to inform him of the range of punishment prior to accepting his guilty plea. The motion court did not err in denying Perkins' claim that his plea was involuntary based on its finding that Perkins was not prejudiced. Point Two is denied. Conclusion The judgment of the motion court is affirmed. __________________________________ Cynthia L. Martin, Judge All concur 13
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